Civil Society in Investment Treaty Arbitration (Nijhoff International Investment Law)

In 2001, the tribunal in Methanex v. the United States allowed three civil soci-ety organizations1 to submit written briefs as amici curiae, i.e. as ‘friends of the court’ and non-disputing third parties. The two sole parties to this arbitra-tion were Methanex, a Canadian methanol producer, on the one hand; and the United States, a North American Free Trade Agreement (nafta) contracting party, on the other. The applicable law, i.e. nafta Chapter xi, and the applica-ble procedural rules, i.e. the 1976 uncitral Arbitration Rules, do not contain any explicit provision that entitles arbitral tribunals to accept amicus curiae briefs. Notwithstanding the legal void, the Methanex tribunal relied on its dis-cretionary procedural powers to accept these amicus submissions. It based its decision on interlocking procedural and substantive considerations. With respect to the latter, the tribunal stated that ‘there is an undoubtedly public interest in this arbitration. The substantive issues extend far beyond those raised by the usual transnational arbitration between commercial parties’.The decision to accept the amicus submissions in Methanex set an impor-tant precedent. It paved the way for civil society’s intervention as amicus cur-iae in similar investment treaty disputes where broader public interest issues were at stake. The Methanex decision shows that, in light of the multiplicity and complexity of the public interest issues at stake, investor-state tribunals need to reach a holistic understanding of the underlying factual and legal is-sues in order to ‘arrive at a correct decision’ and that, therefore, intervention by a ‘friend of the court’ could not just enhance the legitimacy of proceedings, but also provide useful input.3 Since Methanex, the acceptance of amicus in-tervention has nowadays largely become uncontroversial or, to say the least, straightforward. That said, it is subject to intricate and clearly defined rules and conditions as will be shown in this book. ElHossenyFarouk_2018_封面_CivilSocietyInInvestm [9789004349131 - Civil Society in Investment Treaty Arbitration] Civil Society in Investment Treaty Arbitration Civil Society in Investment Treaty Arbitration: Status and Prospects Copyright Dedication Contents List of Abbreviations Introduction 1 Concepts and Definitions I The Concept of ‘Civil Society’ II ‘Amicus Curiae’ and ‘Third Party Intervention’ Procedures 2 Approach and Methodology I Approach II Methodology 3 Structure Part 1: Civil Society Participation before Investor-State Tribunals Introductory Remarks 1 Identifying the ‘Public Interest’ in an Investor-State Arbitration Context 1.1 A Structural Stress Test: ‘Public Interest’ Pressure on Foreign Investors’ Rights and Host States’ Obligations 1.2 Plenty of ‘Hard Law’ Rights, Few ‘Soft Law’ Obligations: A Look at the International Framework on Foreign Investment Protection 1.3 Earlier Examples of Public Interest Issues Raised in Investor-State Disputes 1.4 Adjudication à sens unique? Some of the Earlier Criticism of Investor-State Tribunals’ Awards 1.5 Impact of the International Commercial Arbitration Model on Investor-State Arbitration and Civil Society’s Role 2 Procedural Rules Governing Civil Society’s Participation as Amicus Curiae 2.1 Acceptance of Civil Society’s Participation as Amicus Curiae 2.2 Formalization of Amicus Curiae Participation – The Opening Up to ‘Third Persons’ 3 From Theory to Practice: Investor-State Tribunals’ Decisions on Amicus Curiae Participation 3.1 Earlier Tribunals Inspired by the Methanex Precedent 3.2 Tribunals That Applied Amended and Recently-Adopted Rules 3.3 Common (Procedural) Grounds 4 Civil Society Participation: Where Procedure Intertwines with Substance 4.1 Are Environmental Protection and Human Rights Issues Relevant to the Adjudication of Investor-State Disputes? 4.2 The Leitmotiv of Environmental Protection 4.3 Civil Society as a Human Rights Advocate 4.4 Representing the Under-Represented: Civil Society and Indigenous Groups 5 An Appraisal of Civil Society’s Amicus Curiae Role 5.1 Procedural Developments: Amicus Curiae Intervention Crystallized 5.2 ‘Mixed Results’ – Do Investor-State Tribunals Consider Amici’s Substantive Arguments? 6 Concluding Remarks Part 2: Civil Society Participation before Other Jurisdictions: Four Models Introductory Remarks 1 Absent, but Not Entirely: Indirect Participation at the ICJ 1.1 Contentious Proceedings 1.2 Advisory Proceedings 2 Standing before International Human Rights Jurisdictions 2.1 Civil Society as a Victim of Human Rights Violations before the ECtHR 2.2 Representation of Victims of Human Rights Violations before the IACtHR and ACHPR 3 A ‘Friend of the Court’ outside the Realm of Investor-State Arbitration 3.1 The Amicus Curiae Procedure – A Common Law Inspiration 3.2 WTO Panels and the Appellate Body’s Restrictive Approach 3.3 International Human Rights Jurisdictions’ Liberalism 4 The Peculiar Case of Third Party Intervention 4.1 Third Party Intervention – A Look at the US Model 4.2 Third Party Intervention as Practiced before International Jurisdictions 4.3 Towards a Common Understanding of ‘Third Party Intervention’? 5 Concluding Remarks Part 3: An Enhanced Role for Civil Society before Investor-State Tribunals? Introductory Remarks 1 Transcending Amicus Curiae Submissions 1.1 The Inherent Limitations of the Amicus Curiae Role – A Comparative Perspective 1.2 To be an Amicus or Not to be: Fundamental Differences with Third Party Intervention 2 Looking for a Procedure to Uphold Third Parties’ Direct Interest in Investor-State Arbitration 2.1 The Impossibility of ‘Adding Strangers to the Arbitration’ – UPS v. Canada 2.2 Extreme Circumstances, Standard Limitations – Aguas del Tunari v. Bolivia 2.3 Jurisdictional Barriers Set by the UPS and Bechtel Tribunals 3 The Access to Justice Principle: The Basis for Civil Society’s Third Party Intervention? 3.1 Access to Justice under International Law 3.2 Is There a Civil Society Ius Standi before Investor-State Tribunals? 4 What Conditions Would Govern Civil Society’s Third Party Intervention? 4.1 Rationalizing Civil Society’s Third Party Intervention in Investor-State Arbitration 4.2 Procedural Void and Substantive Barriers: How to Reconcile Third Party Intervention with the Investor-State Arbitration Regime? 5 Concluding Remarks Conclusion Bibliography Index "Civil Society in Investment Treaty Arbitration: Status and Prospects provides an overview of the evolution of civil society's participation as amicus curiae before ICSID tribunals and ad hoc tribunals applying the UNCITRAL Arbitration Rules. That evolution fits within a broader movement towards transparency in investment treaty arbitration. By look at the procedural roles available to civil society before other jurisdictions, the book questions whether the amicus role could be expanded. El-Hosseny ultimately shows how substance and procedure closely intertwine. The issue of civil society's participation in investment treaty arbitration transcends the procedural realm. It is equally about arbitral tribunals' openness vis-à-vis public interest, environmental protection and human rights issues--a crucial consideration in ongoing debates over the legitimacy, and future, of investor-state arbitration." Civil Society in Investment Treaty Arbitration: Status and Prospects provides an overview of the evolution of civil society's participation as amicus curiae before ICSID tribunals and ad hoc tribunals applying the UNCITRAL Arbitration Rules. That evolution fits within a broader movement towards transparency in investment treaty arbitration. By looking at the procedural roles available to civil society before other jurisdictions, the book questions whether the amicus role could be expanded. El-Hosseny ultimately shows how substance and procedure closely intertwine. The issue of civil society's participation in investment treaty arbitration transcends the procedural realm. It is equally about arbitral tribunals' openness vis-à-vis public interest, environmental protection and human rights issues--a crucial consideration in ongoing debates over the legitimacy, and future, of investor-state arbitration Civil Society in Investment Treaty Arbitration: Status and Prospects' provides an overview of the evolution of civil society?s participation as amicus curiae before ICSID tribunals and ad hoc tribunals applying the UNCITRAL Arbitration Rules. That evolution fits within a broader movement towards transparency in investment treaty arbitration. By looking at the procedural roles available to civil society before other jurisdictions, the book questions whether the amicus role could be expanded. El-Hosseny ultimately shows how substance and procedure closely intertwine. The issue of civil society?s participation in investment treaty arbitration transcends the procedural realm. It is equally about arbitral tribunals? openness vis-à-vis public interest, environmental protection and human rights issues - a crucial consideration in ongoing debates over the legitimacy of investor-state arbitration.00 __Civil Society in Investment Treaty Arbitration: Status and Prospects__